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tv   [untitled]    October 12, 2012 12:30pm-1:00pm PDT

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office rather than at the election. it would be contrary to the voter's intent to enhance the ethical responsibilities of their public officials and hold them accountable to imply this two month free zone in between the election and taking the oath of office, where that elected official could do whatever he wanted with no consequences with his public position, until that moment when he walks up to the lectern and raises his hand. it also would lead to absurd results. an elected official could, for example, commit domestic violence on tuesday, and be safe from any official consequences. but if the oath of office is later that day, he couldn't do the same thing on wednesday. that's a completely arbitrary line. it makes no sense whatsoever. it's very different if you draw the line at the election. that makes perfect sense.
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once an official has been granted the voters trust, then he also has the ethical obligation to protect that trust by not committing official misconduct. there is no such sensible distinction drawn at the line of the election. and in fact, there is not a single case anywhere, in any jurisdiction, that overturns the finding of official misconduct on a basis that an elected official had not been sworn in at the time that he committed a misdeed. the sheriff relies exclusively on the mazzola decision, but mazzola didn't consider, for a moment, whether or not it mattered that the conduct occurred before or after swearing in. mazzola's an airport commissioner. he wasn't even sworn in. there is no oath of office for an airports commissioner and there was no dispute in the case
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that he was not a sitting commissioner at all times during the events. >> president chiu: counsel, a question from our colleague. >> that surprises me. i've attended i can't tell you how many commissioner swearing in. what's the difference? you're correct, there is a swearing in for a commissioner, but there's not this two month post election period, where you're elected on november 8 and sworn in two months later leading into this sort of lengthy period of kind of twilight zone time. that's what i meant to say. not that there's no swearing in but there's this ininstitutionallized swearing in period that you haven't been sworn in. thank you for clair for clarify. there is a case on point from 2010 in which a new york state senator named hiram maz rat-i
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committed domestic violence to his girlfriend between being elected in november and being sworn in in january. he committed his domestic violence in december. the new york senate didn't hesitate to remove him and the second circuit didn't hesitate to uphold that removal. despite the fact that that act of domestic violence occurred before the swearing in. and in fact the most restrictive jurisdictions that do draw a line and protect elected officials from accountability for acts of official misconduct the most restrictive of them draw the line at the most recent election. there is not a single jurisdiction that draws the line at the swearing in ceremony and protects elected officials for those first two months. you should also reject the sheriff's relationship argument that his misconduct was not
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related to the duties of office, at least not as that relationship test is contemplated by the san francisco charter. as the ethics commission majority explained and held, the nature of the sheriff's misconduct relates to his duties as chief law enforcement officer in his role administering the city's domestic violence programs. the fact that the relationship test is interpreted by the ethics commission majority to include a subject matter relationship is really very sensible. what happens if you commit misconduct in the very terrain, the very subject matter that you're charged with as a government official is you implicate the public character of your office. if you're the tax collector, and you misrepresent your income on your income taxes, that's not purely private misconduct. that is a matter of public
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concern because it shows the public that it has a fox in the henhouse, essentially. that's very different, if, for example, you're an animal control officer and you misrepresent your income on your taxes. and think of it in reverse. what if you're an animal control officer. is there a relationship to the duties of your position if you're running a dog fight ring? in your private time? of course there is. no one wants michael vic in control of the animal control department. at the same time, if michael vic -- i'm sorry, at the same time if that person isn't fairly disclosing all of their income on income taxes, that may not have an official dimension. that may be purely private misconduct because there is no apparent overlap between the misconduct and the duties.
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chairperson hur explained i think quite eloquently his concern that the relationship test needs to be a bright line test. and the only way to do that, in his view, is to exclude this motion of subject matter relationship. i'm not sure that i agree, and the mayor certainly does not agree, with commissioner hur's decision to emphasize the need for a bright line rule over the voters intent that i think is more fairly inferred to place broad and binding ethical duties on its elected officials. the clarity simply for the sake of clarity, predictability simply for the sake of predictability is not a reason to ignore or to narrowly constrict ethical duties of officers. and it's also not the case that
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there has been some sort of broad misuse of mayoral or executive power that this sort of lack of clarity could inspire. commissioner hur was very careful, actually, to say that he didn't think any such abuse of power happened in this case. and there is no case that was discussed or brought to the attention of the commission in which such an abuse of power did occur. and if such an abuse of mayoral power were going to occur, the solution is not to take subject matter relationships off the table as the subject of official misconduct. the solution is to rely on the tripar tie trurkt o structure of the process that voters put in place. there are careful controls for potential of abuse of executive power. the check on that is the agents commission. the check on that is this body. we don't need to take certain
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forms of official misconduct and place them beyond the board's and the people's reach. commissioner hur also concluded, and the sheriff certainly enthusiastically agrees, that this reasoning is compelled by the mazzola decision. but that's simply not the case. it would be compelled by the mazzola decision if, in that case, commissioner mazzola, who is an airports commissioner, had engaged in some sort of private misconduct in a way that had a subject matter relationship with his duties as an airports commissioner, but he did so on his own time or in his private capacity. say for example, you know, i don't know, he took his private vehicle, and went for a joyride on airport property, but he didn't do it by showing his airport badge. now, if mazzola had considered something like that, where there
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was a subject matter relationship, and concluded that there is a subject matter relationship, but it does not support a finding of official misconduct, then mazzola would be binding authority. as it stands, mazzola didn't consider any issue like that. the conduct with which commissioner mazzola was charged had nothing to do with his job or the subject matter of his role as an airports commissioner and so mazzola really sheds little light on that question. it certainly does not compel the result that a subject matter relationship is not enough. and consider what you should really be guided by, what this board and the agents commission and the mayor must be guided by and that's the language the people put into the charter. the charter language imposes a test whereby it's official misconduct if a public officer engages in wrongful behavior and here's the important part, in relation to the duties of his or
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her office. if the people had wanted to restrict that to misconduct only occurs if the officer is acting in his or her official capacity or if he or she is acting under color of state law then the charter could say that. that is not what the charter says. that's not the language for mazzola that the charter picks up. the charter doesn't even pick up the indect relationship to language that commissioner hur has emphasized in his discussions. the charter chooses necessarily broad common sense in relationship to language that allows both for acting -- misusing your official powers but also for committing misconduct on the very same terrain that you have been charged as a government leader. that's what happened here. finally, i'd like to take a few moments to address the fact that
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the ethics commission felt that the sheriff's misconduct was really quite serious. and, frankly, that it was disturbed, all five commissioners separately commented on the fact that they felt that the sheriff, in his testimony to them, deliberately minimized and sanitized his account of the events of december 31, that he was not truthful, that he was not forthcoming, that his rendition of events, under oath, before the ethics commission, was not credible, was not trustworthy. i think that's a serious indictment of a sitting sheriff, if you cannot trust his testimony under oath, before the very commission that is there to test his ethical right to offi office. now, you sometimes hear often in
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the media because a lot of the statements about how this isn't such a big deal tend to get made more in the media than under oath, but you often hear, well gosh, it's not such a big deal, it's just an arm grab, it's just a little bruise, you know, these things happen. but i wonder, what is it about that that makes such conduct, for some people, not serious. is it not serious that the injury was only a bruise? would a more serious injury have made the incident serious, and worth condemning? or is it not serious perhaps because the person who received the the bruise was the sheriff's wife? well, of course these things are serious, and these things are serious not just because, you know, feminists have gone off the rails with some sort of zero tolerance policy about domestic violence, and have lost their common sense, these things are
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serious because family violence is an endemic -- or is an epidemic in this city and in this country. it's serious because it truly harms families. it truly harms san franciscans. it harms the people who call the crisis lines, the people -- the thousands of people who call 911. it matters to families, to residents, to neighbors, to communities, that people are violent in their homes. and that's one of the reasons why we have, as a community -- >> [timer sounding.] >> president chiu: thank you very much. i have a feeling, colleagues, probably will have some questions. i will start. counsel, i want you to address a little bit more the ethics commission chair's argument that
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official misconduct requires the involvement of the duties of one's office and that without some sort of clear bright line definition we could have future ad hoc interpretations of official misconduct. that -- having clarity in law seems to make sense. what i heard you say was that things are murky. this is not clear as we would want it to be. in fact weir here because it does not seem as clear as we want to be and it feeds into the sheriff's argument that the standard is vague. i wonder if it you could address what exactly the standard is if it's not completely clear. >> sure. i do not degree an agree and din to convey the standards is murky. i don't think that you can always predict, you know, two miles up what the result will be in every case. but that's far from saying that you have a standard that you can't apply, or that is
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unpredictable. the test in this case is whether the misconduct relates to the duties of office and whether that relationship can be evident in two different ways, it can be whether or not the official actually used the powers of office or committed misconduct while fulfilling the duties of office, or it can be the relationship test, the subject matter relationship test that i was emphasizing and discussing. now, it's not a 100% bright line rule only because different offices have different duties, and because there are lots of different kinds of wrongful behavior and misconduct that officials can engage in. but it's not actually a very difficult test to determine whether there's a relationship between the kind of thing the person did wrong, and the kind of office that person holds. and, in fact, there's quite a
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bit of case law in california that can be used as a guide, and that case law has developed in the context of employee misconduct. and, you know, there's -- there are several strands of cases that provide examples, and they're sort of interesting historical pieces because, for example, in the 1970's there's a whole string of cases about what does it mean to possess marijuana. does possession of marijuana fundamentally relate to the duties of a teacher such that the teacher needs to lose the teacher's license. does the possession of marijuana relate to the duties of a real estate broker, such that that person can't be a real estate broker anymore. the answer to that is no. the answer to the first question of a teacher is it depends on the circumstances.
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there's a teacher who wanders out in the field and finds a marijuana plant, and out of educational interest brings it home to see how it's going to grow. that person has not committed misconduct in relation to the duties of their office, but a teacher on a different set of facts, who's involved in more serious drug offenses, and who has more contact with youth and a more corrupting influence, that person's conduct does relate more to the duties of their office. so to bring sort of my answer back around, it is a fact-specific inquiry. it's an inquiry that you can't always predict the outcome of before you've seen the evidence and the facts of the case, what exactly the misconduct was, what exactly the duties are. the fact doesn't make it too vague to apply, it makes it a more nimble -- to find official
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misconduct where it exists and exempt misconduct is purely private and not official when the duties are not implicated. >> president chiu: you're suggesting we should think about fact specific situations where a public official has charter section 15.105(e) refers to conduct that falls below the standards of decency impliedly required of all public officers. how do you read that statement which seems to suggest there should be some sort of standard that is a little difficult i think for public officers of the public to completely understand, but you do suggest that even though the language refers to all public officers that, again, you believe strongly that there's a fact specific relevance to whatever the conduct is and whoever the public officer is? >> i do -- the mayor does take that position. and it's a position that is
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really informed by the extensive body of due process jurisprudence in the state, under which -- and again in the employee misconduct cases, it's the case that you can't just fire someone or deprive them of their property interest in their state employment -- and interest by the way is what an elected official does not have, he doesn't have a right to office, it's a privilege, but when you're taking away a state employee's right to their position, you do have to give them some notice, and you have to hold them to a standard of conduct that's specific to their position. nobody knows what the standard of decency for all state employees, with that minimum irreducible quantum of conduct would be. but people, in various professions, and various roles
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are presumed to know what the standard of conduct is that goes with their position, and that's certainly the case for someone who seeks to be a sheriff, that he should know and can be presumed to know what the standard of conduct is for a chief law enforcement officer. so although the language of the charter seems broad, it -- i mean there's certainly a good argument that it is a single standard. at the same time, it needs to be interpreted -- and is susceptible to being interpreted as a standard that his office-dependent. and again that would require a fact-specific inquiry. you can't decide in advance, without knowing what has happened in a particular case, whether it's misconduct or not misconduct. it depends on the office. >> president chiu: colleagues, follow-up questions. supervisor farrell. >> supervisor farrell: thanks, president chiu. madam city attorney, to follow up on that line of questioning
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though, on one hand you say it should be easy to determine what is misconduct or not. on the other hand you say it's fact specific. i think commissioner hur's comments does that not invite subjectivity and gets us back to what the question is here, about clear delineation and having security and not the future abuse this potentially in the future, not to say anybody in this room or the current mayor, but anyone in the future, have a real clear sense of what this means. more about that because it seems very contradictory right now. >> you know, i guess the way to approach that is to point out that the simple fact that there are facts involved, and that you have to take the facts into consideration, and that there are many different permeantations that could
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possibly come up, doesn't make a rule too unwieldy, or too unpredictable or too arbitrary. one of the reasons why it's not arbitrary there is an entire body of case law to look to for guidance that has weighed many kinds of different kinds of misconduct against the professional standards and responsibilities with the person who committed it, and determined the situations where there is a relationship and there isn't a relationship. and, frankly, if you think about the facts of this case, it's not a hard call. does committing a crime of violence against your wife and pleading guilty to it, and suffering a three-year criminal conviction relate to the subject matter of a chief law enforcement officer, who runs the jails and helps administer the correctional system in san francisco? yes. yes. upon that is not an unpredictable, vague, surprised
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relationship. yes, there's a clear subject matter relationship. most cases will be clear. there will be cases on the boundaries where, you know, the decision-makers are going to have to exercise judgment. but there's a three -- there's a tripar tight system with checks and balances to make sure that the decision is considered, and there is also court review after that, in case the -- you know, in case the entire city gets it wrong. but the simple fact that there are facts involved isn't necessarily something that makes it too complicated or too unpredictable to deal with. that's how law is. haw is always the -- law is always the application of law to facts. >> supervisor farrell: okay. i want to get back to the timing question that you talked about earlier. there is an act that happened on december 31st, and then your
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brief talks a lot about subsequent behavior. and then an ultimate plea on march 12, i believe. i know you talked about and your brief talks about having not just the act on december 31 but the entire course of conduct be part of this -- you want us to consider the whole body of work, if you will. one question though i think it was competing between your brief and the attorneys for mr. mirkarimi's brief -- >> president chiu: speak into the mic, it's hard for folks to hear. >> supervisor farrell: competing arguments between briefs about the plea in and of itself. and i want to get a clarification. i understand the plea was a result of actions that occurred on december 31. but i want to be clear because your brief, to me, suggested that a plea, in and of itself,
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is another act of misconduct, or another criminal act. and if that were to be the case well then you'd have a plea based upon that criminal conduct and that would just go on forever. so i just want to be clear with you, i guess i could understand that there is an action on december 31, any consequences that result because of that kind of tie back in time to that original. you have to tolerate the consequences of actions. but i want to be clear that the action of a plea, in and of itself is not in and of itself an act of misconduct. >> i agree, that is not the position that the mayor is taking, that entering a plea of guilty is wrongful behavior. the effect though of pleading guilty to charges that the sheriff previously disputed or denied is that it fixes in time, with certainty, when it is that the city knew, and the mayor
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knew, and the voters knew, that our sheriff had in fact committed a crime. think, for example, there are various removal provisions or disciplinary provisions that say -- that are about conduct. you know, you're not allowed to commit this or that sort of conduct. but there's another series of prohibition that is tied to a conviction, right? you're not presumed guilty simply because you're arrested. you're not presumed guilty because you're denying your misdeed. you're only presumed guilty, you're only concluded to be guilty, when you plead guilty, or when you're found to be guilty. so the plea is actually something -- the guilty plea is not itself misconduct, but it attaches a time to the time that the city knew, and the mayor
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knew, with certainty, that the sheriff had committed an act that the mayor believed to merit removal. and, in fact, it wasn't until after he pled guilty and after he was sentenced that the mayor brought the official misconduct charges. >> president chiu: thank you. supervisor kim. >> supervisor kim: thank you. and, madam clerk city attorney, i appreciate your articulating the test because i think for me personally it's important either to develop a bright line rule or a test to guide future decisions when you use this tool of removal. and so you had articulated that under the test that either, one, that you used your office to commit this misconduct, or, two, that the relationship test, i agree with you i think that if you agree that this is the test, that the relation test would make it clear what is and what is not official misconduct. but then if i use your test, then any misdemeanor that our
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sheriff pleads to is official misconduct. is that correct? >> no, not necessarily. any misdemeanor that the sheriff pleads to would relate to the duties of his office, right? but the relationship to the duties of his office standing alone is not enough to underpin a finding of official misconduct. he also must be a public officer at the time of the conduct, and the conduct must be wrongful behavior as the ethics commission applied that, behavior that actually falls buy low the standard of decency, good faith, and right action expected of that public official. so it's not that any de minimus act of wrongful behavior or any possible misdemeanor conviction automatically is official misconduct for a sheriff.
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it is probably the case though that every misdemeanor conviction relates to the duties of the sheriff as a law enforcement officer. >> supervisor kim: so then you're adding to the test then the second portion of your test would be a relationship test, plus the ethics commission would have to determine that it falls below the standard of decency for that office. >in relationship to the sheriff's office, but if we were to assume that it is standards in relationship to your specific office, for the sheriff, it would be the relationship to his office, plus the -- what common sense would judge as falling before the standard of decency? this is where i get stuck is when does it fall below the standard of decency? a dui could be -- as a misdemeanor. you didn't hurt anyone per se, but you could have. you could hav